Grow at your own risk

By Michael Brice Keller


The Constitution, I am told, is written on hemp, and I can’t say I haven’t benefited from the use of therapeutic cannabis products.

Since about the 1930s, however, there has been purported illegality of marijuana on some level. Many cite the Marijuana Tax Act of 1937 as the pivotal prohibition moment, but that was interestingly overturned in the 1969 U.S. Supreme Court case Leary v. United States.

The truth is that prohibition of marijuana is a falsehood of epic proportions. Marijuana toxicity overdose resulting in death has never been recorded in human history, and such would have to be required for any valid prohibition to exist. Conversely, we now know of countless medical benefits of marijuana products.

Marijuana has also been villainized historically for its relationship to Mexican and African-American populations, and supporters of prohibition today are no less culpable for the harms that disproportionately run along socio-economic and racial lines. Despite similar use rates per capita for black and white users, some statistics show African-Americans as up to four times more likely to be arrested for possession.

Thanks to 2016’s HB 523, medical marijuana is legal in Ohio, with stores set to open in 2018. Today, there are still penalties for those caught selling or growing and civil penalties for low level possession. HB 523, however, does provide an affirmative defense to possession of marijuana products under certain circumstances.

Though, with this step forward, it’s still a risk to grow your own. As a lawyer, I cannot advise breaking the law, but I can encourage limiting behavior to lessen offenses, from felony to misdemeanor and so on.

You can, particularly if selling what you grow, still face substantial penalties, including felonies. The key is to limit all activities to personal and medical use, if possible. With this tactic, you are best suited to preserve a defense that the whole of the behavior does not exceed misdemeanor liability (180 days in local jail) and avoid prison. The second potential mitigating factor is the amount you grow. I am reminded of the Marijuana Legalization Amendment, which presented a reasonable amount of four flowering plants per home grow for personal and medical use. The idea that responsible adults should be able to maintain four flowering plants is hard to argue with.

The problems arise when actions suggesting commercial activity open you up to civil asset forfeiture issues. This is when the prosecution may seize money and/or property in a civil seizure, whether or not you are ever convicted. So, the fewer plants you have, the easier it is to defend.

Further, keep in mind that simple possession of less than 100 grams and gifting 20 grams or less are both minor misdemeanors, which could be argued as civil disobedience, a fundamental right of the American democratic process.

When the medical marijuana program is in full swing next year, there will be tested, regulated products available in stores and, arguably, advantages in consumer protections versus today’s underground market. Until then, growing your own is really about the only safe way to access marijuana for personal use, but it comes with the risks above, among others. Be careful out there, and engage the criminal defense bar for more answers to these burning questions.

I’ll conclude with a note for everyone in Dayton, a city currently dealing with an opiate epidemic: states with some sort of medical marijuana access have shown substantial reductions in opiate deaths. While you could take 10 drugs as prescribed by your doctor, half to combat side effects of the other half, you might find that marijuana helps to cut 10 drugs to three, or seven down to two.

Long ago, we began our villainy of the opium plant with Chinese rail workers and opium dens.  Today, the comparatively minor effects of smoking opium are exponentially worse by injecting heroin adulterated with fentanyl or other powerful chemical compounds. Interestingly, this is often the end result of doctors over-prescribing opiates and analogs.

Whether you’re a user, concerned parent, or resident performing their civic duty, talking to your doctor today about medical marijuana is a good idea for everyone.

For advice on talking to your doctor about medical marijuana, please go to page 27.
Articles by Michael Brice Keller, while containing accounts of experiences and viewpoints from the legal world, are not legal advice. To contact Keller Law Office concerning legal services, please visit or call 937.5400.LAW(529).

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Michael Brice Keller is a criminal defense attorney in Dayton who spends most days working on appointed counsel cases and public policy issues with his girlfriend and legal assistant Ashley. He’s a USAF Security Forces Veteran, former undercover investigator, police officer, and private military contractor. As a member of NORML and the founder of GreenFight ( he’s active in the reform of marijuana laws. You can reach him at

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